Report
Teaser, summary, work performed and final results
Periodic Reporting for period 1 - TRANS-END (Transgender and Intersex protection from gender-based violence: exploring new directions)
Teaser
Trans persons, whose gender identity differs from their assigned sex at birth, face frequent harassment and violence in all regions of the world. Similarly, intersex individuals, born with body characteristics that challenge typical notions of male or female bodies, are often...
Summary
Trans persons, whose gender identity differs from their assigned sex at birth, face frequent harassment and violence in all regions of the world. Similarly, intersex individuals, born with body characteristics that challenge typical notions of male or female bodies, are often stigmatized and subjected to multiple human rights violations, including their right to health and physical integrity. These violations, however, are often excluded from the protection of gender-based violence (GBV) norms. In fact, human rights law is reluctant to expand the concept of gender to include trans and intersex persons. This excludes them from a ready-for-use and sophisticated system of protection.
The recent visibility of violence against trans persons challenges the legal conceptualizations of \'men\' or \'women\' by including attention for trans and intersex persons. This could transform the scope of protection of human rights. The formal and practical potential of broadening existing GBV frameworks to protect trans and intersex persons is explored in this project, directed by Dr. Lorena Sosa with the support of Utrecht University and the University of Buenos Aires. The study critically examines the legal and social developments in Argentina regarding trans and intersex persons, given their innovative character and the high levels of social awareness on the issue.
From a comparative perspective, the Argentinian legal framework applicable to trans and intersex persons shows features scarcely available in other legal frameworks. The murder of trans persons can be prosecuted as gender-based violence or as a hate crime, both incorporated to the Criminal Code as aggravations. The gender-based violence murder is labelled as ‘femicide’ -emphasising that the victim was a woman- while a murder based on hate is labelled as ‘travesticide’ -emphasising that the victim was trans or transvestite. The implications of each alternative require more research, yet if the prosecutor chooses to give more visibility to the identity of the victim as trans, the GBV system seems to be set aside (such as the reparation measures granted to femicide secondary victims).
Some highly sophisticated theoretical notions have been incorporated into the legal framework, such as ‘symbolic violence’. Yet, despite several implementation mechanisms used, media representations remain discriminatory. Also, the legal recognition of gender identity parts from pathological understandings of transgenderism by disconnecting it from genitalia and traditional body constructions. Moreover, non-binary identities have been recognized in case law and administrative practice. However, the reading of the law in most cases seems to reinforce traditional body constructions.
Case law has occasionally recognized the severely disadvantaged position of trans persons, even by exempting their responsibility in criminal cases. Some corrective measures are being adopted at the local level, such as labor quotas. Yet, general principles of law found in civil and labor law are seldom used in combination with the equality principle to protect trans and intersex persons. Trans issues are generally channeled through a separate legal pathway, and civil society claims the adoption of ‘new norms’ rather than a more comprehensive and inclusive reading of existing ones.
The officials, judges and lawyers that must apply gender diversity norms are either unfamiliar with them, or apply them in isolation. General principles derived from the GBV and trans/intersex frameworks do not permeate the normative system in its integrity. Training seems the obvious yet insufficient recommendation. Yet, in addition to the flaws in legal implementation, the Argentinian context currently shows a strong discursive regression. Conservative groups actively campaign against the implementation of gender diversity laws. The need to mainstream gender diversity norms into the general normative system seems even more imperative.
Work performed
The project started in May 2018 with an exploratory analysis of national legislation. The regulation of symbolic violence, mentioned above, lead to a published paper and a presentation at the ISA Annual meeting of 2018 in Toronto. The paper explores the theoretical understanding of symbolic GBV and its incorporation into Argentinian law, particularly in relation to media and press. A systematic review of press reports on the violent murder of women and trans women in for a period of over two years showed that symbolic violence prevails despite the regulation and the adoption of media protocols. Moreover, the press reveals a traditional criminal law mindset, a field of law which remained almost untouched by the gender sensitive paradigms. The legal analysis also showed changes in the way \'sex\' is considered in national laws as a personal identification marker. These practices impact on intersex children, whose bodies are intervened to fit in the male/female classification, often without a health-related justification. A paper exploring when and why sex registration became a legal practice in Argentina and its purpose is in draft. It investigates the consequences that political transitions and medical trends had for gender registration laws and practices. This phase of the project coincided with precedent-setting cases, such as the Sacayán case, whose suspect was punished for ‘trasvesticide’ rather than femicide. Reflections on the legal and social tensions around these labels and the terminology that offers better protection to trans women will be presented in a panel at the European Conference on Politics and Gender 2019, in Amsterdam. Finally, the obligations of Argentina before the Inter-American system of Human Rights in relation to gender-based violence and their connection to Latin-American feminist claims were examined in a draft paper presented in the CLACSO international Conference in November 2018.
Regarding dissemination, in addition to two international conferences, a film festival on Gender Identities was organized by the researcher in collaboration with other research groups and NGOs. Debates on sexual orientation and gender identity issues followed each movie, in a relaxed non-academic environment. This awareness-making initiative reached out to the general public.
Final results
The work carried out these past months on the MSCA project have made my professional profile more appealing, and contributed toward receiving a very prestigious grant in the Netherlands. This secured me a permanent position with the MSCA beneficiary institution, Utrecht University, giving me the opportunity to continue my career as academic. For this reason, the MSCA terminated earlier than planned.
In relation to the results and the social impact of the project, two reports describing the existing norms, the most relevant case law and advice on how to proceed in cases of violence against trans and intersex persons were planned following the empirical part. They were planned to be presented in two workshops with practitioners. Brochures with the most significant findings were planned to be posted online and distributed among relevant associations and institutions. These outputs were not delivered due to the early termination of the project, yet the published and draft papers provide enough tools for thinking and questioning the applicable frameworks. Moreover, the film festival made the general public more familiar with the problems that trans persons face.